Advisory Opinion: 2219
Year Issued: 2012
RPC(s): RPC 1.0A(c), 1.1, 1.13(b), 5.1(a)-(c), 5.5(a), (d)(1)
Subject: Corporate In-House General Counsel Responsibility for Another In-House Lawyer who is Not in the Same Legal Department


This opinion addresses the supervisory responsibility of a corporate in-house general counsel (the “General Counsel”) for another in-house lawyer-employee who is not a part of General Counsel’s legal department but will nonetheless give legal advice to the corporation on at least some occasions (the “Other Lawyer”).

BACKGROUND

General Counsel is licensed in Washington and is an employee of Corporation who represents Corporation from an office in its Washington headquarters. Other Washington-licensed lawyers work with General Counsel as a part of Corporation’s in-house Legal Department.

Recently, Corporation hired Other Lawyer but did not place Other Lawyer in the Legal Department or otherwise subject Other Lawyer to control by General Counsel. Other Lawyer is not licensed in Washington but is licensed and in good standing in another United States jurisdiction. Corporation has decided to give Other Lawyer the title “Staff Attorney” even though Other Lawyer is not a member of the Legal Department.

General Counsel has questions about whether, or to what extent, he is responsible for assuring that Other Lawyer acts consistently with the RPCs. Although General Counsel has sought to place Other Counsel in the Legal Department or otherwise to have Other Counsel become subject to General Counsel’s direct or indirect control, Corporation has refused to take either step.

DISCUSSION

1. RPC 5.5(d)(1): Authorized In-House Practice

RPC 5.5(d)(1) governs practice by in-house counsel employed in Washington who are only licensed in another state:

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates and are (i) provided on a temporary basis and (ii) not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

Comments [16] and [17] to RPC 5.5 explain that:

[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer's officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer's ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer's qualifications and the quality of the lawyer's work.

[17] [Washington revision] In Washington, paragraph (d)(1) applies to lawyers who are providing the services on a temporary basis only. If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer must seek general admission through APR 3 or house counsel admission under APR 8(f).

It follows that unless Other Lawyer’s practice is authorized by federal preemption, is authorized by other law or constitutes a temporary practice in Washington, Other Lawyer must obtain general or in-house counsel admission in order to avoid engaging in the unauthorized practice of law (“UPL”). This would include holding Other Lawyer out as “Staff Attorney.”

It also follows that if Other Lawyer is engaged in UPL, General Counsel would need to pay attention to RPC 5.5(a), which provides that: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” General Counsel’s status as an employee of Corporation who has neither direct nor indirect supervisory responsibility for Other Counsel’s activities would not place General Counsel in violation of RPC 5.5(a). The answer would be different if, for example, General Counsel undertook to work with Other Counsel on a legal matter that required Other Counsel to engage in UPL or to be held out as licensed to practice in Washington if he is not.

This opinion is limited to General Counsel’s supervisory responsibilities. Moreover, the Committee on Professional Ethics does not give advice on violations of law outside the RPCs. But we note that General Counsel, by virtue of his/her role as counsel for an entity under RPC 1.13, has other duties that may be triggered if Other Lawyer is practicing law in Washington on the entity’s behalf without a license to do so, as contemplated by GR 24 and RPC 5.5(d)(1). Other Lawyer may also be in violation of RCW 2.48.180. At a minimum, General Counsel’s duty of competent representation under RPC 1.1 might require General Counsel to advise his/her client of Other Lawyer’s obligations under RPC 5.5(d)(1) and recommend appropriate action. General Counsel also owes duties to the entity under RPC 1.13(b) that are triggered if an employee for the organization is engaged in action that is a violation of law that reasonably might be imputed to the organization and might result in substantial injury to the organization.

2. RPC 5.1: Supervisory Duties

RPC 1.0A(c) includes “the legal department of a corporation or other organization” within the definition of “law firm.” RPC 5. 1 provides that:

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Comments [1] through [3] to RPC 5.1 elaborate on these duties:

[1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a firm. See Rule 1.0A(c). This includes members of a partnership, the shareholders in a law firm organized as a professional corporation, and members of other associations authorized to practice law; lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency; and lawyers who have intermediate managerial responsibilities in a firm. Paragraph (b) applies to lawyers who have supervisory authority over the work of other lawyers in a firm.

[2] Paragraph (a) requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.

[3] Other measures that may be required to fulfill the responsibility prescribed in paragraph (a) can depend on the firm’s structure and the nature of its practice. In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. See Rule 5.2. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.

Since Other Lawyer is, by hypothesis, not a part of the Legal Department and General Counsel has no direct or indirect control over Other Lawyer, RPC 5.1(a) and 5.1(b) impose no duty on General Counsel to supervise Other Counsel. n.1 Even if they did, however, General Counsel’s unsuccessful attempts to have Corporation place Other Counsel in the Legal Department or otherwise to subject Other Counsel to General Counsel’s control would constitute “reasonable efforts” under these particular circumstances. n.2 The fact that RPC 1.0A(c) refers to “the legal department of a corporation or other organization” (emphasis supplied) does not, in our opinion, permit or require us to ignore the fact that Corporation has effectively chosen to have more than one legal department.

Since General Counsel cannot order Other Lawyer to do or refrain from doing anything, there would be no violation of RPC 5.1(c)(1) unless General Counsel knowingly ratifies an RPC violation by Other Lawyer. Similarly, and given that General Counsel’s attempts to control or limit Other Lawyer’s activities have all been rebuffed, there would be no violation of RPC 5.1(c)(2).

(Amended 2017)

Footnotes:

1. It also appears that Other Lawyer cannot fairly be described as a non-lawyer for whom General Counsel would have some degree of responsibility under RPC 5.3.

2. In addition to these unsuccessful efforts, however, General Counsel should inform others in the Legal Department that they cannot assist Other Lawyer in UPL. See the discussion earlier in this opinion about RPC 5.5(a). See also RPC 8.4(a), making it professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessor, the Rules of Professional Conduct Committee. Advisory Opinions issued by the CPE are distinguished from earlier RPC Committee opinions by a numbering format which includes the year followed by a sequential number. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.